Gessler v. Johnson

January 21, 2013

The Brennan Center for Justice partnered with Colorado Common Cause in its successful litigation to ensure that all registered and eligible Colorado voters have the ability to participate in Colorado elections.

Colorado gives counties the option of conducting certain elections by mail. In these elections, there are no traditional polling places; instead, citizens vote by mailing in ballots sent to them by election officials. Most counties in Colorado held such an election in November 2011.

Just before the 2011 mail-only election, Colorado Secretary of State Scott Gessler issued an order that mail ballots could only be sent to voters who voted in the last general election. Those who did not vote in the last general election—so called “inactive—failed to vote (IFTV)” voters— would not be sent mail ballots unless they submitted to an administrative process to “reactivate” their status, a process similar to re-registering to vote.

Prior to Gessler’s order, Denver County had planned to send mail ballots to both active and IFTV voters in the county, as it had for the last five election cycles. When Denver County announced its intention to proceed with sending mail ballots to registered voters – active and IFTV alike – Secretary Gessler brought suit against Denver County, asking a court to rule that county clerks and recorders must follow his interpretation of the law. Secretary Gessler also asked for an injunction preventing Denver County from sending ballots to IFTV voters—even though the election was mail-only. The court denied the injunction, and Denver sent mail ballots to IFTV voters. Several other counties also sent mail ballots to IFTV voters after the ruling.

Colorado Common Cause moved to intervene in the suit on behalf of Colorado citizens as the court considered whether Gessler’s interpretation would apply to future elections. Colorado Common Cause argued that Gessler’s interpretation of the Colorado law violates the federal and state constitutions.

On January 21st, 2013, the court ruled that Gessler’s interpretation of the mail ballot law was incorrect, and that counties are permitted to send ballots to IFTV voters.

The Court emphasized that Colorado law prohibited “any elector’s registration record from being canceled solely for failure to vote” but that the Secretary's interpretation of the law would have required some voters who had missed a single election to “re-register” to vote, “effectively penaliz[ing]” citizens “for not voting.” This would have “impeded the voting of some 4,000 – 6,000 IFTV electors in Denver in November 2011 … and tens-of-thousands of citizens statewide.”

For more information on the court’s ruling and how it protects the rights of thousands of Colorado citizens, read our press release.